The Dirty Dozen: 12 Improper Lines of Cross-Examination

Cross-examination in court can be a powerful tool, but it is important to avoid improper lines of questioning and to use it strategically to build the narrative of the defense 

Questions to inspire discussion 

• What is the goal of cross-examination?

  —The goal of cross-examination is to create frustration in the person being questioned, leading them to change their answer in an attempt to please the questioner, but it's important to stick to your original answer and not be swayed by the Crown's interpretation.

• What should be avoided during cross-examination?

  —Cross-examination should not be used to harass or embarrass the witness, and it is important to clarify answers and admit to things that are accurate.

• What are some improper lines of cross-examination?

  —Improper lines of cross-examination include asking compound questions, eliciting hearsay, and attacking the complainant's state of mind.

• How should lawyers conduct cross-examinations?

  —Lawyers are now conducting cross-examinations in a more professional and civil manner, with a focus on fairness and civility.

• What is the impact of cross-examination on sentencing?

  —The speaker discusses the improper lines of cross-examination and the potential impact on a sentencing if the person is found guilty.

Key Insights

• 🔍 The Dirty Dozen: 12 Improper Lines of Cross-Examination
• 😡 The Crown sometimes asks gratuitous questions about the client's sex life to destabilize and humiliate them during cross-examination.
• 😡 The frustration of improper lines of cross-examination and the double standard in allowing bad character evidence to be brought in.
• 🚨 The aggressive nature of cross-examination can shock and unsettle the accused, making it a powerful tool in the courtroom.
• 🔍 The effectiveness of presenting the defense evidence throughout cross-examination to make a thematic point is crucial in ensuring the judge or jury already knows the defense evidence.
• 💡 Both the complainants and the accused need to be confronted with the allegation from either side, and failure to do so may result in an adverse inference being drawn.
• 🚨 Judges often interrupt compound questions during cross-examination, highlighting the importance of asking one point at a time.
• 🏛️ The goal of cross-examination is not just to challenge the witness, but also to establish facts that will build upon the narrative of your own client's defense.

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Clips 

• 00:00 🔍 Cross-examination techniques and improper lines of questioning are discussed, with a focus on creating inconsistencies in witness testimony.
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  • The speaker discusses the 12 improper lines of cross-examination, focusing on the first one on the list.
  • Cross-examination often involves repeating the same question multiple times in order to create internal inconsistencies in the witness's testimony.
• 04:26 🔍 Cross-examination should aim to frustrate the witness into changing their answer, but it's important for the accused to stick to their original testimony and not be swayed by the Crown's interpretation.
  • The goal of cross-examination is to create frustration in the person being questioned, leading them to change their answer in an attempt to please the questioner, but it's important to stick to your original answer and not be swayed by the Crown's interpretation.
  • The accused should not be afraid to clarify their testimony and explain their reasoning during cross-examination.
  • Cross-examination should not be used to harass or embarrass the witness, and it is important to clarify answers and admit to things that are accurate.
  • Cross-examining a client for being frugal in a relationship is not illegal or immoral, but it can be used to harass or embarrass them, and unnecessary questions about sexual life should be avoided.
  • Cross-examination can be unnecessarily invasive and humiliating, leading to frustration for the client and potentially destabilizing their testimony.
  • Accused persons should not be insulted or abused during cross-examination, and it is important for witnesses to take ownership of any unpleasant behaviors.
• 10:43 🔍 Cross-examination should avoid improper questions that elicit inadmissible evidence, privileged information, or impermissible reasoning, as it can impact the accused's case and violate the complainant's rights.
  • Old school cross-examination lines like "Do you believe in the Bible?" are no longer as common.
  • Cross-examination should not elicit inadmissible evidence, and it is important for the accused to handle improper questions carefully.
  • Cross-examination can be used to elicit evidence of bad character or propensity, but it's important for lawyers to be careful not to engage in impermissible reasoning.
  • Do not ask questions that elicit privileged information during cross-examination, as it is prohibited by law and violates the complainant's right to privacy.
  • The speaker discusses the improper lines of cross-examination and the challenges of dealing with inadmissible evidence and hearsay in court.
  • The speaker discusses the improper lines of cross-examination and the potential impact on a sentencing if the person is found guilty.
• 16:44 🔍 Defense lawyers should avoid aggressive and abusive questioning of witnesses, focus on presenting defense evidence, and confront the accused with allegations during cross-examination.
  • Aggressive and abusive questioning of witnesses, including asking about therapy sessions, can be detrimental to the client and is often associated with defense lawyers.
  • The speaker had to ask the opposing counsel to slow down their questioning during cross-examination because it was too fast for the speaker to keep up with and for the client to answer.
  • Cross-examination can be aggressive, but it is important to ask direct questions and point out the actions of the accused.
  • The speaker emphasizes the importance of presenting the defense evidence throughout cross-examination in order to make a thematic point and ensure that the judge or jury is already familiar with the defense evidence when the client takes the stand.
  • The speaker discusses the improper lines of cross-examination, including asking peripheral questions and creating inconsistencies, without addressing the core allegation.
  • The accused should be confronted with allegations and should not be asked why the complainant would make up an allegation, as it reverses the burden of proof.
• 22:24 🔍 Improper lines of cross-examination include implying no reason for actions, suggesting motives without addressing weight, attacking the complainant's state of mind, asking about other witnesses' motives, and asking compound questions.
  • The speaker discusses improper lines of cross-examination, including implying no reason for someone's actions and suggesting a motive without addressing its weight.
  • Cross-examination should not attack the complainant's state of mind, ask about other witnesses' motives, or try to make the witness mind read.
  • Avoid asking compound questions and be careful not to editorialize during cross-examination to ensure clarity and effectiveness.
  • The speaker discusses the improper lines of cross-examination, including asking compound questions and not allowing the witness to answer each part separately.
• 25:48 🔍 Avoid editorializing and irrelevant questions during cross-examination, assess probative value and potential prejudicial effect, and be cautious of assuming thoughts and intentions, especially in cases of exploitation.
  • Avoid editorializing and prefacing questions during cross-examination, as it can be unhelpful and not technically allowed, but can sometimes be used for dramatic effect, especially in front of a jury.
  • Assessing whether a line of questioning is permissible based on its probative value and potential prejudicial effect, especially in sexual assault cases.
  • The examiner asks irrelevant questions to the witness in order to trip them up, even after they have already stated they cannot answer.
  • The speaker discusses the dangers of assuming someone's thoughts and intentions during cross-examination, especially in cases of exploitation.
• 30:05 🔍 Lawyers discuss improper lines of cross-examination, including hearsay questions and the importance of letting clients answer, while prosecutors aim to get to the truth.
  • The speaker discusses improper lines of cross-examination, including questions that elicit hearsay and evidence that would not otherwise be admissible.
  • The cross-examination line about the ex-girlfriend's roommate's feelings is based on hearsay and impermissible reasoning.
  • It's important for lawyers to let their clients stand on their own and answer questions during cross-examination, rather than instinctively trying to protect them.
  • Cross-examining a complainant can be challenging as they may try to manipulate evidence, but it's important for them to detach from being the accused and simply answer the questions.
  • Cross-examination is about establishing inconsistencies, contradictions, and getting information out to build the narrative of your client's defense, while prosecutors have a duty to try and get to the truth.
• 35:00 🔍 Lawyers are now conducting fair and civil cross-examinations, addressing unfairness in the court system and stereotypes about male accused, and encouraging viewer engagement.
  • Lawyers are now conducting cross-examinations in a more professional and civil manner, with a focus on fairness and civility.
  • The speaker discusses the unfairness and obstacles in the court system, particularly in cross-examination, and the pernicious stereotypes about male accused.
  • The speaker encourages viewers to like, comment, subscribe, and share the videos, and to keep sending in questions and emails for future content. 

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Duration: 0:38:28

Publication Date: 2024-04-15T12:25:12Z

WatchUrl: https://www.youtube.com/watch?v=B5t6gzPb-7Q

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